A garda who engaged in a sexual act with a woman while on duty in a Garda station was unlawfully suspended over the incident, the High Court has ruled.
This was because the officer had already gone through a disciplinary process in which a recommendation that he resign was overturned and instead a reduction in wages was imposed, Mr Justice Cian Ferriter found.
The garda, who was based in a rural station, had admitted discreditable conduct by engaging in the act with a woman who had come into the station to give a statement relating to the arrest of her sister in March 2017.
Following a Garda disciplinary process in which his resignation/retirement was recommended but later overturned as disproportionate, the Garda Commissioner decided that notwithstanding the finding, he was to be suspended.
He brought High Court judicial review proceedings against the Commissioner.
It was claimed the suspension, which was extended a number of times, effectively flew in the face of the determination that he only lose pay and not be required to resign. The Garda Commissioner opposed the action.
Mr Justice Ferriter found the suspension was unlawful.
The judge said that after admitting in an internal inquiry in September 2018 to engaging in the sexual act and failing to take a statement from the woman, it was recommended he be required to retire or resign for the sexual act matter and be subject to a two-week reduction in pay over the failure to take her statement.
The Garda Commissioner adopted the recommendation and told him that if he failed to resign by November 16th, 2018, he would be dismissed.
The garda appealed the decision and an appeal board, chaired by then-senior counsel, now High Court judge Caroline Biggs, decided in January 2020 that the sexual act penalty was disproportionate.
It imposed a penalty for the sexual act breach of a four-week pay reduction. The two-week pay reduction previously recommended in relation to the statement breach remained unchanged.
Mr Justice Ferriter said that, in arriving at its view, the appeal board considered the circumstances of the breach, the garda’s previously unblemished record and various other mitigating factors.
It was noted he was deeply remorseful for his actions but the board stated that “public confidence mandates that these breaches be severely punished”.
The board said it was fining him the maximum allowed for the sexual act and noted he had suffered reputational damage within his community and his work. His personal life had been severely affected, including that his father had not spoken to him in 14 months.
He was the father of three very young children with a mortgage and a family to provide for and “taking away his right to work as a member of An Garda Síochána, would affect his ability to support his family greatly”, the board also said.
Subsequently, however, in January 2020, he received a letter on behalf of the Commissioner suspending him. The reason for the suspension was given as “consideration of (the garda’s) position under Section 14 of the Garda Síochána Act which gives the Commissioner power to dismiss an officer if it is considered necessary to maintain confidence in the force.
The Commissioner also said the garda was aware the woman, in this case, was vulnerable, while he was in a position of authority and alone with her in the station. His position in the force was untenable, the Commissioner said.
Following correspondence from the garda’s solicitor to the Commissioner, saying the decision to suspend was unlawful and calling for his reinstatement, legal proceedings were issued.
In his decision in favour of the garda, Mr Justice Ferriter said that by using Section 14 of the Garda Síochána Act to suspend him, the officer was being “vexed twice” in relation to the same matter.
The Commissioner appeared to take the view that the prior disciplinary process and its outcome were legally irrelevant. “I do not believe that is correct as it disregards entirely the (garda’s) rights in the matter”, he said.
The invoking of the Commissioner’s “exceptional powers” under Section 14 of the Act breached the garda’s rights to constitutional justice on the facts of this case, he said.